Whether your financial affairs are simple or complex and if you are over 18, having an up-to-date Will is essential. A Will provides clarity on how your estate will be distributed and can significantly reduce the emotional and financial stress on your loved ones after your passing.

Here’s 5 key reasons why you should have a Will and what happens if you don’t.

1. Ensure Certainty for Your Assets

A Will allows you to specify how your assets—including cash, property, vehicles and shares – are distributed. Without a Will, your estate will be managed according to the rigid intestacy rules, which may not reflect your personal wishes.

If you die without a Will your assets will be distributed to your living next of kin in a set order and in certain proportions.

If no next of kin can be found, your estate will be transferred to the Crown.

By creating a Will, you ensure your estate is distributed exactly as you choose, avoiding this default position.

2. Guardians Appointed for Your Children

If you have children under 18, through your Will you can nominate someone you trust to be the legal guardian of your children. Guardians are responsible for making important decisions regarding your children’s upbringing, including education and healthcare.

Without a Will, the surviving parent typically assumes sole guardianship. However, if both parents are deceased, anyone can apply to the Family Court for guardianship. This process can be costly, time-consuming, emotionally draining and conflict inducing, particularly if multiple family members believe they should be your children’s guardian.

By appointing a guardian in your Will, you ensure your children’s care is entrusted to someone you trust.

3. An Executor is Appointed

When drafting your Will, you designate an Executor to manage your estate after your passing. The Executor’s responsibilities include:

• Coordinating the funeral with your family
• Locating and notifying beneficiaries
• Identifying and securing estate assets
• Applying for a Grant of Probate (if required)
• Collecting and distributing assets according to your Will
• Paying debts and liabilities
• Filing tax returns and obtaining tax clearances
• Resolving disputes between beneficiaries

Choosing a trusted person as your Executor – often a family member or close friend – ensures your wishes are respected. Business or financial experience can be helpful, but professional advice from lawyers or accountants can assist with complex tasks.

Without a Will, someone must apply to the Supreme Court to act as Executor, which takes time and places financial and emotional stress on loved ones at a sensitive time.

4. Avoid Unnecessary Costs

A well-prepared Will minimises administrative costs. Without a Will, your family will need to apply to the Supreme Court, so that someone is legally recognised to be able to deal with your assets and affairs. This often increases legal expenses and reducing the overall value of your estate. If no-one is appropriate or willing to act, the Court may appoint the Public Trustee, who will charge fees to administer your estate – reducing the amount left for your beneficiaries.

5. Reduce the Risk of Conflict

Estate disputes are common, especially when there is no Will or when a Will is unclear or poorly drafted. Disputes can lead to lengthy legal battles, higher costs, and significant delays in distributing the estate.

A clear, professionally drafted Will helps:

• Minimise misunderstandings and disagreements
• Speed up the estate administration process
• Provide peace of mind for you and your loved ones

Next Steps

Creating a comprehensive and up-to-date Will is a critical step in estate planning. If you already have a Will, reviewing (and if required, updating) your Will is necessary to ensure that it still meets your wishes. A good time to review your Will is after significant life events, such as marriage, divorce, the birth of a child, acquiring significant asset, or simply every 5 years to ensure it still meets your wishes.

We’re Here to Help

Preparing a Will is one of the most important actions you can take to protect your family and your legacy. Our experienced Wills and Estates team can guide you through the process, ensuring your wishes are clearly documented and legally sound.

Don’t leave your estate to chance. Contact us today for personalised advice and assistance with drafting or updating your Will.

An Enduring Power of Attorney (EPOA) is a powerful legal document that enables you to appoint a trusted person or people to make decisions on your behalf when you are unable to make your own decisions or, more specifically when you don’t have legal capacity to make decisions yourself. Understanding an EPA’s purpose and implications is vital for protecting your future.

Nominating Attorneys

When making an EPOA, you can appoint one or more people to act as your:

• Financial Attorney – Make financial related decisions on your behalf
• Personal/Health Attorney – Makes personal, welfare and healthcare decision on your behalf

You may choose the same person for both roles or different people for each role depending on your preferences and circumstances.

What is Legal Capacity?

Legal capacity refers to the ability to understand the nature and consequences of your decisions and communicate those decisions effectively.

A loss of capacity can be temporary or permanent. Some examples of conditions that may lead to a loss of capacity include:

• A temporary unconsciousness due to an accident
• Acquired brain injuries
• Progressive illnesses like dementia

Can an Attorney be Appointed if I Don’t Have Legal Capacity?

Once you have lost legal capacity or deemed to have lost legal capacity, you are unable to make an EPOA. Without an EPOA, this means no one is able to make formal decisions on your behalf.

This means your family and friends will need to apply to the Queensland Civil and Administrative Tribunal (QCAT) to be appointed as the financial and/or personal/healthcare attorney.

This can often be a drawn out and stressful process for your family and could have been avoided had a valid EPOA been made.

Responsibilities of a Financial Attorney

A financial attorney serves to make financial decisions about you and on your behalf which can include:

• Paying maintenance and accommodation expenses
• Handling investments and financial planning
• Overseeing property transactions such as selling, buying or leasing property
• Completing your tax returns
• Renewing nominations for your superannuation fund

Responsibilities of a Personal/Health Attorney

A personal/health attorney serves to make decisions about your well-being and healthcare which can include:

• Determining where and with whom you live with
• Managing daily lifestyle choices, including diet and clothing
• Approving or declining medical treatments including life-sustaining treatments

Choosing an Attorney

Selecting the right attorney or attorneys is critical. Common choices include:

• A spouse or partner
• A sibling, child, or parent
• A trusted friend or adviser

You can appoint multiple attorneys and decide how they act:

• Jointly – All must agree on decisions
• Severally – Each can act independently
• By Majority – Decisions require a set majority
• A Combination – Tailored to your preferences

When Does an EPOA Take Effect?

• Financial Attorney – You can choose for your financial attorney to act immediately (meaning they can make decisions for you even when you still have legal capacity) or for only when you have lost legal capacity.

• Personal/Health Attorney – Your chosen attorney can only make personal and healthcare decisions when you have lost legal capacity.

Protect Your Future Today

Planning ahead with an EPOA ensures someone has the authority to make decisions for you in unforeseen circumstances and reduces stress for loved ones. To learn more or create your estate plan, contact our experienced Wills and Estates legal professionals.

When it comes to protecting your loved ones and your legacy, having a clear and comprehensive Will is one of the most important steps you can take. Whether your financial situation is simple or complex, an up-to-date Will provides clarity, reduces stress and ensures your wishes are respected.

6 Key Steps to Writing Your Will

Creating a Will doesn’t have to be overwhelming. Follow these essential steps to ensure your estate is handled according to your intentions.

1. Select Your Beneficiaries

Think about everything you own—your assets, property, savings, shares and more. Decide who you would like to provide for and nominate them as beneficiaries. This may include loved ones, friends or perhaps charities you are passionate about. Beneficiaries are the individuals or entities who will receive their share of your estate as specified in your Will.

2. Decide How You Want Your Estate Distributed

Consider how you want your assets divided. This could include:

• Specific gifts – a designated amount of money, property or valuable item
• Residual gifts – the remainder of your estate after specific gifts and debts are accounted for
• Percentage gifts – a percentage of your total estate to certain individuals or entities
• Whole estate – leaving everything to a single beneficiary, such as a spouse or charitable cause

Don’t forget about your superannuation, which isn’t automatically covered by your Will. You may need a binding nomination to direct your super to your estate.

3. Choose an Executor

Your Executor is responsible for administering your estate. This includes:

• Organising your funeral
• Managing and distributing assets
• Paying debts and taxes
• Resolving any disputes
• Distributing gifts you make ion your Will

Choose someone trustworthy, capable and willing to act. Many people select a close family member or friend, but professional support from legal or financial advisers can help navigate complexities. If you don’t have a suitable nominee, a professional can be appointed –  though fees will apply.

4. Appoint Guardians for Minor Children

If you have children under 18, appointing a guardian is crucial. Choose someone you trust to care for your children and make key decisions about their upbringing, education and welfare.

5. Write Your Will with a Legal Professional

A Will is a vital personal document that reflects your values and relationships. It must be carefully written to:

• Precisely capture your wishes
• Ensure professional and efficient estate administration
• Thoughtfully address all your assets and chosen beneficiaries

Estate disputes are common when a Will is unclear or poorly drafted. Working with a legal professional:

• Reduces the risk of misunderstandings
• Minimises delays and costs
• Provides peace of mind for you and your family

Legal experts ensure your Will is properly structured and comprehensive. They help safeguard your estate, prevent conflict and guide executors through the process with confidence.

Don’t leave your legacy to chance. Professional guidance is key to a smooth estate administration.

6. Sign Your Will Correctly

For your Will to be valid, it must be:

• Signed in front of two independent witnesses over 18 who are not beneficiaries
• Signed on every page, with the final page dated

Keep It Safe

Store your Will securely. It is important that your original Will be kept in a location that protects it from damage as any damage may invalidate your Will. Many people choose to keep it with their lawyers. Inform your executors where the original is kept for easy access when required and if you are comfortable, provide them with a copy.

Common Mistakes After Signing a Will

It is important that your original Will be kept blemish free as this may invalidate your Will. Blemishes include:

• Removal of staples to photocopy or scan the Will – staples should never be removed once stapled
• Micro tears on any pages
• Clipping the Will to other documents, leaving indentations or rust marks

Next Steps

Life changes – so should your Will. Review your Will after significant life events like marriage, divorce, the birth of a child or death in the family. Even without major changes, a review every five years ensures your wishes are current.

We’re Here to Help

Our experienced Wills and Estates team can guide you every step of the way. We’ll ensure your Will is clear, legally sound, and reflects your intentions. Don’t leave your estate to chance – contact us today to get started or update your Will.

Take control of your legacy. Contact us now on reception@hillhouse.com.au to protect your loved ones, your legacy and your peace of mind.